Kerala High Court
Sajina Salim vs The State Of Kerala on 13 May, 2025
Author: N.Nagaresh
Bench: N.Nagaresh
2025:KER:33728
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 13TH DAY OF MAY 2025 / 23RD VAISAKHA, 1947
WP(C) NO. 22754 OF 2024
PETITIONER:
SAJINA SALIM
AGED 34 YEARS
WIFE OF NIYAS M A
HIGH SCHOOL TEACHER (SOCIAL SCIENCE),
LAJANATHUL MUHAMMADIYA HIGHER SECONDARY SCHOOL,
ALAPPUZHA, ALAPPUZHA DISTRICT- 688001
(RESIDING AT MATHIRAMPALLIL HOUSE,
ALAPRA P O, KOTTAYAM DISTRICT-686544),
BY ADVS.
SRI. V.A.MUHAMMED
SRI. V.RAJASEKHARAN NAIR
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY ITS PRINCIPAL SECRETARY TO
GOVERNMENT,
GENERAL EDUCATION DEPARTMENT,
SECRETARIAT ANNEXE II,
THIRUVANANTHAPURAM, PIN - 695001
2 THE DIRECTOR OF GENERAL EDUCATION
JAGATHY, THIRUVANANTHAPURAM,
PIN - 695014
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W.P.(C) No.22754/2024
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3 THE DEPUTY DIRECTOR OF EDUCATION
CIVIL LINES, ALAPPUZHA DISTRICT,
PIN - 688001
4 THE DISTRICT EDUCATIONAL OFFICER
JAWAHAR BALABHAVAN ROAD, ALAPPUZHA,
PIN - 688001
5 THE MANAGER
LAJANATHUL MUHAMMADIYA HIGHER SECONDARY
SCHOOL, ALAPPUZHA, ALAPPUZHA DISTRICT,
PIN - 688001
6 SEENA E
HEADMASTER,
LAJANATHUL MUHAMMADIYA HIGHER SECONDARY
SCHOOL, ALAPPUZHA, ALAPPUZHA DISTRICT-688001
7 A.RAJEENA
HSA(SS),
LAJANATHUL MUHAMMADIYA HIGHER SECONDARY
SCHOOL, ALAPPUZHA, ALAPPUZHA DISTRICT-688001
8 P.S.SAFIYA BEEVI
HSA(SS),
LAJANATHUL MUHAMMADIYA HIGHER SECONDARY
SCHOOL, ALAPPUZHA, ALAPPUZHA DISTRICT- 688001
BY ADVS.
SMT. M.A.VAHEEDA BABU
SRI. BABU KARUKAPADATH(B-13)
SMT. ARYA RAGHUNATH(K/000474/2018)
SRI. KARUKAPADATH WAZIM BABU(MAH/8319/2019)
SMT. P.LAKSHMI(K/001868/2021)
SMT. AYSHA E.M.(K/001130/2022)
SRI. DENNIS BIJU(K/002709/2023)
SRI. ABUASIL A.K.(K/001702/2024)
SRI. SHAWN JOHNSON(K/1262/2023)
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W.P.(C) No.22754/2024
:3:
SRI. MANU KRISHNA S.K.(K/002737/2023)
SRI. RAJESH T.R
SMT. JALAJAMANI K.R.(K/496/1999)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY
HEARD ON 28.03.2025 AND THE COURT ON 13.05.2025
DELIVERED THE FOLLOWING:
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W.P.(C) No.22754/2024
:4:
N. NAGARESH, J.
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W.P.(C) No.22754 of 2024
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Dated this the 13th day of May, 2025
JUDGMENT
~~~~~~~~~
The petitioner, who is an approved HST
(Social Science) in the Lajanathul Muhammadiya Higher
Secondary School, Alappuzha, has filed this writ petition
seeking to set aside Ext.P10 and to command the
respondents to sanction additional post of HST (SS)
admissible from 01.10.2023 and to declare that the petitioner
is entitled to regular appointment from 01.10.2023 onwards
in view of sub-rule (6) of Rule 12A Chapter XXIII KER and to
grant approval to Ext.P5 appointment on regular basis. The
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petitioner also seeks to command the 5th respondent-
Manager to fill up the vacancy of HSST (History) occurred on
01.06.2024 by posting either the petitioner or respondents 7
or 8, under by-transfer appointment with effect from the date
of reopening of the School in the academic year 2024-2025.
The petitioner has further sought incidental reliefs.
2. The petitioner was appointed as HST (SS)
from 01.06.2018 to 14.07.2019 against a retirement
vacancy. The petitioner was retrenched on 15.07.2019 due
to fall in Division. The petitioner was reappointed as HST
(SS) from 01.06.2023 onwards against an anticipated
additional division vacancy, on daily wages as per Ext.P3.
The Government did not sanction the additional divisions or
posts. The Manager, however, reappointed the petitioner
from 01.10.2023 onwards on regular scale of pay basis, as
per Ext.P5.
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3. The petitioner states that a vacancy of
HSST (History) would arise on 01.06.2024 due to the
retirement of Smt. Latha S., HSST (History). The petitioner
contends that the seniors of the petitioner have relinquished
their claim for promotion by transfer as HSST (History). The
petitioner submitted Ext.P9 representation to the
Government requesting to grant approval to her appointment
as HST (SS) from 01.06.2023 to 30.09.2023 on scale of pay
basis in terms of Ext.P6 order and approval to her
appointment as HST (SS) from 01.10.2023 onwards by
sanctioning an additional post of HST (SS) under Rule 12(6)
Chapter XXIII KER. This Court, by Ext.P9 judgment in W.P.
(C) No.15213/2024, directed the 1st respondent to pass
orders on Ext.P9.
4. The Government rejected the
representation of the petitioner as per Ext.P10 order holding
that the petitioner is not entitled to approval on scale of pay
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from 01.06.2023 to 30.09.2023 as there is no provision for
granting scale of pay till the new additional post is
sanctioned. In Ext.P10, it was further stated that the post of
HSST (History) is reported to Employment Exchange for
reservation appointment of disabled hands.
5. The petitioner states that in view of Ext.P11
GO dated 25.06.2022, the reservation in appointment of
disabled hands is subject to the claims under Rules 1(1), 43,
51A and 51B Chapter XIVA and Rule 9A Chapter XXIVA
KER. The petitioner is a Rule 43 claimant as on 03.06.2024,
the date of occurrence of the vacancy of HSST (History).
Therefore, the petitioner is entitled to by-transfer
appointment as HSST (History).
6. The counsel for the petitioner urged that the
petitioner has approved service in a regular vacancy of HST
(Social Science) from 01.06.2018 to 14.07.2019 as
evidenced from Ext.P1. Therefore, the petitioner is a Rule
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51A claimant. The petitioner's probation was declared with
effect from 01.06.2019. The petitioner was again
reappointed in an additional vacancy from 01.10.2023
onwards on regular basis. The said appointment is
approved upto 14.07.2024. The vacancy of HSST arose on
01.06.2024. Therefore, the petitioner is entitled for
appointment as HSST (History). Ext.P10 order is therefore
illegal and unsustainable.
7. Relying on the judgment in Geetha S. v.
Geo Thomas K. and others [2009 (4) KHC 296], the
petitioner contended that merely because the original
appointment was not approved, the Manager cannot deny
reappointment. The counsel pointed out the judgment in
Arshad Beegum J.J. v. Najjeeb A. and others [2009 (4)
KHC 458] and argued that if a person appointed in a
temporary vacancy is entitled to be considered for
appointment to regular vacancies, there is no reason why he
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should not be considered for promotion also. The counsel
for the petitioner submitted that the respondents are
compellable to sanction additional post of HST (SS)
admissible from 01.10.2023 and is entitled for regular
appointment from 01.10.2023. Consequently, the petitioner
is entitled to be appointed as HSST (History) against the
vacancy occurred on 01.06.2024.
8. The 4th respondent-DEO filed counter
affidavit. The 4th respondent submitted that one additional
post of HST (SS) was sanctioned to the School for the year
2023-2024. The Manager appointed the petitioner on daily
wage basis from 01.06.2023. The office of the DEO
returned the proposal for non-submission of delay
condonation order from the Deputy Director of Education.
The proposal was not resubmitted after rectification of
defects.
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9. The Manager reappointed the petitioner as
HST (SS) with effect from 01.10.2023 in the anticipated
additional division vacancy during 2023-2024 on regular
scale of pay basis. During 2024-2025 staff fixation, one post
of HST (SS) was reduced due to division fall. Therefore, the
additional post of HST (SS) allotted in 2023-2024 cannot be
continued for the year 2024-2025. The appointment of the
petitioner as HST (SS) therefore can only be considered for
a limited period from 01.10.2023 to 31.03.2024 as per
existing rules.
10. Respondents 6 to 8 also filed counter
affidavit. Respondents 6 to 8 submitted that the petitioner is
no more a Teacher continuing as HST with approval from
the Department as on the date of occurrence of vacancy on
03.06.2024. Only an approved HST continuing in the School
as on the date of occurrence of vacancy is entitled to be
appointed by transfer.
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11. The retirement vacancy which arose on
03.06.2024 is identified and earmarked for persons with
disability. The Manager has already sent a requisition to the
Employment Officer for nominating persons with disability.
The writ petition is therefore without merit and it is liable to
be dismissed.
12. I have heard the learned counsel for the
petitioner, the learned Government Pleader representing
respondents 1 to 4, the learned counsel appearing for the 5th
respondent-Manager and the learned counsel appearing for
additional respondents 6 to 8.
13. The petitioner has approved service as
HST (SS) from 01.06.2018 to 14.07.2019. The petitioner
was reappointed as HST (SS) from 01.06.2023 against an
anticipated additional division vacancy on daily wage basis.
The Manager reappointed the petitioner as HST (SS) from
01.10.2023 onwards on regular scale of pay basis.
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However, the said appointment has not been approved.
14. Though the petitioner was appointed
against an anticipated additional division vacancy from
01.06.2023 onwards, the Government has not issued any
orders allowing additional posts so far. Therefore,
admittedly, the petitioner continued without approval. The
petitioner submits that a vacancy of HSST (History) will arise
on 01.06.2024 and the petitioner is entitled for by-transfer
appointment as HSST (History) from 01.06.2024.
15. Pursuant to the directions of this Court in
W.P.(C) No.15123/2024, the Government considered the
claim of the petitioner. The Government noted that though a
proposal for approval for the appointment of the petitioner
from 01.06.2023 to 30.09.2023 was given, the proposal was
made belatedly and therefore the DEO returned the proposal
for curing the defects. Thereafter, though the Deputy
Director of Education has condoned the delay in making the
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proposal, the Manager has not submitted the proposal. The
vacancy of HSST (History) which arose on 01.06.2024 has
been earmarked for reservation for persons with disability.
16. As the additional vacancy for the academic
year 2023-2024 has not been sanctioned by respondents 1
to 4 so far, the petitioner cannot stake any claim based on
his service as HST(SS) from 01.06.2023 onwards. As the
vacancy of HSST (History) stands earmarked for persons
with disability, the petitioner cannot claim appointment by
transfer to the said vacancy.
17. Therefore, the prayer of the petitioner for
regular appointment as HSST from 01.10.2023 cannot be
allowed at this stage and the claim of the petitioner for
appointment as HSST (History) by transfer cannot be
granted, as the vacancy is earmarked for persons with
disability.
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The writ petition is therefore disposed of to
the limited extent of directing the 5th respondent-Manager to
resubmit the proposal for approval of the appointment of the
petitioner as HST (SS) on daily wage basis on and from
01.06.2023, if the Manager has not already resubmitted the
proposal. The re-submission of such proposal shall be
made within a period of one month and respondents 3 and 4
shall take a decision thereon within a further period of two
months.
Sd/-
N. NAGARESH, JUDGE
aks/09.05.2025
2025:KER:33728
APPENDIX OF WP(C) 22754/2024
PETITIONER'S EXHIBITS
Exhibit P-1 TRUE COPY OF THE ORDER NO.
B2/44562/2023 DATED 10.03.2023 OF THE
DEO, ALAPPUZHA
Exhibit P-2 TRUE COPY OF THE ORDER NO. D.DIS.
B2/56739/2023 DATED 22.08.2023 OF THE
4TH RESPONDENT
Exhibit P-3 TRUE COPY OF THE APPOINTMENT ORDER
DATED 01.06.2023
Exhibit P-4 TRUE COPY OF THE G,O. (MS.) NO.
102/2022/G.EDN DATED 08.06.2022
Exhibit P-5 TRUE COPY OF THE APPOINTMENT ORDER
DATED 01.10.2023
Exhibit P-6 TRUE COPY OF THE G.O. (P) NO.
31/2006/GE DATED 19.10.2006
Exhibit P-7 TRUE COPY OF THE DECISION IN GEETHA S
V. GEO THOMAS K AND OTHERS (2009 (4)
KHC 296)
Exhibit P-8 TRUE COPY OF THE DECISION IN ARSHAD
BEEGUM J J V. NAJJEEB A AND OTHERS
(2009 (4) KHC 458)
Exhibit P-9 TRUE COPY OF THE REPRESENTATION
SUBMITTED BEFORE THE 1ST RESPONDENT
DATED 30.03.2024
Exhibit P-10 TRUE COPY OF THE G.O. (RT.) NO.
3780/2024/G.EDN DATED 14.06.2024
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Exhibit P-11 TRUE COPY OF THE G.O. (P) NO.
111/2022/GEDN DATED 25.06.2022
Exhibit P-11(a) TRUE COPY OF THE ENDORSEMENT IN THE
SERVICE BOOK SHOWING DECLARATION OF
PROBATION OF THE PETITIONER
Exhibit P-11(b) TRUE COPY OF THE INFORMATION SO
RECEIVED UNDER THE RIGHT TO
INFORMATION ACT IN THIS REGARD
Exhibit P-11 (c) TRUE COPY OF THE JUDGMENT IN WP(C)
NO. 29889 OF 2022 DATED 07.03.2023 OF
THIS HON'BLE COURT
Exhibit P-11 (d) TRUE COPY OF THE APPROVED SENIORITY
LIST OF THE SCHOOL AS ON 01.01.2023
Exhibit P-11 (e) TRUE COPY OF THE RELINQUISHMENT
LETTER COUNTERSIGNED BY THE DISTRICT
EDUCATIONAL OFFICER DATED 01.01.2025
Exhibit P-11 (f) TRUE COPY OF THE GOVERNMENT ORDER GO
( RT) NO.4397/2024/G.EDN DATED
15.07.2024
Exhibit P-11 (g) TRUE COPY OF THE ENQUIRY REPORT
SUBMITTED BY THE DISTRICT EDUCATIONAL
OFFICER ON THE COMPLAINT SUBMITTED BY
THE PETITIONER WITH COVERING LETTER
NO. B2/1791/2024 DATED 25.07.2024
Exhibit P-11 (h) TRUE COPY OF THE HEARING REPORT
SUBMITTED BY THE DEPUTY DIRECTOR OF
EDUCATION VIDE NO.DDE/3935/2024/B2
DATED 03.09.2024
Exhibit P-11 (i) TRUE COPY OF THE ORDER OF THE
DIRECTOR NO.SC2/13716/2024/DGE DATED
1.10.2024
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Exhibit P-11 (j) TRUE COPY OF THE LETTER
NO.B2/6143/2024/DDE DATED 01.11.2024
ISSUED BY THE ADMINISTRATIVE
ASSISTANT DDE OFFICE, ALAPPUZHA WITH
TYPED COPY
Exhibit P-11(k) TRUE COPY OF THE ORDER OF THE
DIRECTOR IN THE REVISION VIDE ORDER
NO.RA1/21779/2024/D.G.E DATED
11.12.2024
Exhibit P-11(l) TRUE COPY OF THE GO ( RT)
NO.8322/2024 DATED 25.11.2024
Exhibit P-12 TRUE COPY OF THE M A CERTIFICATE
ISSUED BY THE M.G. UNIVERSITY DATED
18.02.2015
Exhibit P-13 TRUE COPY OF THE M.ED CERTIFICATE
DATED 18.06.2015 OF THE M G.
UNIVERSITY
Exhibit P-14 TRUE COPY OF THE CIRCULAR
NO.JA2/13/2024/ G.EDN DATED
08.05.2024 ISSUED BY THE GOVERNMENT
Exhibit P-15 TRUE COPY OF THE ORDER OF THE
ASSISTANT EDUCATIONAL OFFICER,
ALAPPUZHA VIDE NO B2/54598/2023 DATED
14/11/2024
RESPONDENTS' EXHIBITS
EXHIBIT R5(a) A TRUE COPY OF THE APPLICATION
SUBMITTED BY THE 5TH RESPONDENT DATED
04/04/2024 BEFORE THE EMPLOYMENT
OFFICER, THIRUVANANTHAPURAM,
EXHIBIT R5(b) THE TRUE COPY OF THE APPLICATION
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DATED 25/03/2024 SUBMITTED BY MRS.
REGINA A, THE SENIOR OF THE
PETITIONER IN THE CATEGORY OF
HSA/HST, BEFORE THE 5TH RESPONDENT
EXHIBIT R5(c) A TRUE COPY OF THE FIR DATED
01/08/2024 REGISTERED AGAINST THE
PETITIONER BEFORE THE ALAPPUZHA SOUTH
POLICE STATION,
EXHIBIT R5(d) A TRUE COPY OF THE INTERIM ORDER
DATED 06/08/2024 OF THIS HON'BLE
COURT WP(C) NO.27915/2024 FILED BY
THE PETITIONER, WHICH WAS PRODUCED
BEFORE THE HEADMISTRESS OF THE
SCHOOL,
EXHIBIT R4(a) TRUE COPY OF THE LETTER DATED 01-12-
